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State v. Moore

Court of Appeals of Ohio, Second District, Montgomery

April 7, 2017

STATE OF OHIO, Plaintiff-Appellant

         Criminal Appeal from Common Pleas Court Trial Court Case No. 2015-CR-1738.

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Attorney for Plaintiff-Appellant

          MICHAEL P. BRUSH, Atty. Reg. No. 0080981, Attorney for Defendant-Appellee


          TUCKER, J.

         {¶ 1} The State appeals from an order dismissing charges against defendant-appellee Patrick Moore. The State contends that the trial court erred in finding that Moore's speedy trial and due process rights were violated. We conclude that the record does not support a finding that Moore's rights to a speedy trial or due process were violated. Accordingly, the judgment of the trial court is Reversed and Remanded.

         I. Facts and Procedural History

         {¶ 2} In 2009, the Dayton Police Department conducted a sting operation in which an officer, pretending to be a minor, engaged in on-line contact with adults. During the course of the operation Moore, using his personal computer, sent nude pictures of himself to the officer. The images showed Moore engaging in sexual behavior. Moore also used his Blackberry cellular telephone to call and text the officer. On November 13, 2009, Moore was arrested and his cell phone was seized as evidence.

         {¶ 3} Moore was indicted on four counts of importuning, one count of possession of criminal tools (the Blackberry phone), one count of attempt to commit unlawful sexual contact with a minor, and six counts of disseminating matter harmful to juveniles. Following plea negotiations, Moore entered a plea of guilty to one count of importuning and one count of disseminating matter harmful to a juvenile. The remaining charges were dismissed, and Moore was sentenced to community control.

         {¶ 4} Moore's cell phone remained in the Dayton Police Department property room until 2015, when it was marked for destruction under department guidelines. Prior to being sent out for destruction, the memory card was removed and placed in a plastic bag along with the memory cards removed from other phones slated for destruction. Upon inspection, the card from Moore's phone was found to have child pornography stored on it.

         {¶ 5} On September 24, 2015, Moore was indicted on 26 counts of illegal use of a minor in nudity-oriented material or performance and one count of pandering sexually-oriented material involving a minor. He filed a motion to dismiss the indictment arguing that the new charges arose from the same set of facts and circumstances as the earlier adjudicated charges. Thus, he claimed violations of both his speedy trial and due process rights. A hearing was conducted before the trial court.

         {¶ 6} At the hearing, Sergeant Jeffrey Yaney, Dayton Police Department Property Evidence Storage Supervisor, testified that department policy requires that evidence in felony cases be retained for three to five years after conviction. He testified that the evidence is then destroyed, but that there is no set format for the manner in which evidence is destroyed. However, he routinely destroys cell phones by sending them to a third-party recycling company. Yaney testified that he generally gathers phones that are ready for destruction twice a year. He also testified that he removes the memory cards from the phones in order to prevent any private information from being disseminated. Yaney testified that in early 2015 he pulled Moore's phone for destruction. He testified that he placed the memory card, along with cards from other phones, into a plastic bag which he then gave to Detective Mont Rodrigues. He testified that Rodrigues wanted to reformat the cards so that they could be recycled and reused by the department for other purposes. Yaney testified that he also asked Rodrigues to review the memory cards for identifying information so that, in the case of lost phones turned in to the police department, he could return the cards to their owners. However, he did not separate the memory cards of phones seized as evidence from those that had merely been turned in as lost.

         {¶ 7} While attempting to reformat Moore's memory card, Rodrigues discovered a folder that contained over 500 pictures of what appeared to be nude minors along with two videos of children engaging in sexual conduct. He also found a picture of a prescription for Moore. An investigation confirmed that the images involved minors.

         {¶ 8} Dayton Police Detective Raymond St. Clair testified that he was the lead detective, and undercover officer, on the 2009 investigation. He testified that he engaged in a computer video chat with Moore, and that nude pictures of Moore appeared on St. Clair's computer screen during the course of the exchange. St. Clair testified that it appeared Moore had used a camera attached to Moore's own computer to transmit the images. He testified that he seized Moore's phone during that investigation because Moore used it to text and make calls to St. Clair, whom Moore believed to be a 15 year old girl. St. Clair testified that he only searched the phone for the call log and text messages. St. Clair further testified that the 2009 investigation did not involve child pornography because Moore did not request pictures of the "minor, " and there was no reason to believe that pictures of nude minors would be on the phone.

         {¶ 9} The parties stipulated that the court could take judicial notice of the case file and docket from the earlier case. Following the hearing, the trial court concluded that Moore's right to a speedy trial was violated because the police could have discovered the child pornography when the cell ...

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